Protests Over a Bush Rule To Protect Health Providers

By ROBERT PEAR

Published: November 18, 2008

A last-minute Bush administration plan to grant sweeping new protections to health care providers who oppose abortion and other procedures on religious or moral grounds has provoked a torrent of objections, including a strenuous protest from the government agency that enforces job discrimination laws.

The proposed rule would prohibit recipients of federal money from discriminating against doctors, nurses and other health care workers who refuse to perform or to assist in the performance of abortions or sterilization procedures because of their ''religious beliefs or moral convictions.''

It would also prevent hospitals, clinics, doctors' offices and drugstores from requiring employees with religious or moral objections to ''assist in the performance of any part of a health service program or research activity'' financed by the Department of Health and Human Services.

But three officials from the Equal Employment Opportunity Commission, including its legal counsel, whom President Bush appointed, said the proposal would overturn 40 years of civil rights law prohibiting job discrimination based on religion.

The counsel, Reed L. Russell, and two Democratic members of the commission, Stuart J. Ishimaru and Christine M. Griffin, also said that the rule was unnecessary for the protection of employees and potentially confusing to employers.

Title VII of the Civil Rights Act of 1964 already prohibits employment discrimination based on religion, Mr. Russell said, and the courts have defined ''religion'' broadly to include ''moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views.''

Mr. Ishimaru and senior members of the commission staff said that neither the Department of Health and Human Services nor the White House had consulted their agency before issuing the proposed rule. The White House Office of Management and Budget received the proposal on Aug. 21 and cleared it on the same day, according to a government Web site that keeps track of the rule-making process.

The protest from the commission comes on the heels of other objections to the rule by doctors, pharmacists, hospitals, state attorneys general and political leaders, including President-elect Barack Obama.

Mr. Obama has said the proposal will raise new hurdles to women seeking reproductive health services, like abortion and some contraceptives. Michael O. Leavitt, the health and human services secretary, said that was not the purpose.

Officials at the Health and Human Services Department said they intended to issue a final version of the rule within days. Aides and advisers to Mr. Obama said he would try to rescind it, a process that could take three to six months.

To avoid the usual rush of last-minute rules, the White House said in May that new regulations should be proposed by June 1 and issued by Nov. 1. The ''provider conscience'' rule missed both deadlines.

Under the White House directive, the deadlines can be waived ''in extraordinary circumstances.'' Administration officials were unable to say immediately why an exception might be justified in this case.

The proposal is supported by the United States Conference of Catholic Bishops and the Catholic Health Association, which represents Catholic hospitals.

Sister Carol Keehan, president of the Catholic Health Association, said that in recent years, ''we have seen a variety of efforts to force Catholic and other health care providers to perform or refer for abortions and sterilizations.''

But the National Association of Chain Drug Stores, the American Hospital Association, the American Medical Association, 28 senators, more than 110 representatives and the attorneys general of 13 states have urged the Bush administration to withdraw the proposed rule.

Pharmacies said the rule would allow their employees to refuse to fill prescriptions for contraceptives and could ''lead to Medicaid patients being turned away.'' State officials said the rule could void state laws that require insurance plans to cover contraceptives and require hospitals to offer emergency contraception to rape victims.

The Ohio Health Department said the rule ''could force family planning providers to hire employees who may refuse to do their jobs'' -- a concern echoed by Cecile Richards, president of the Planned Parenthood Federation of America.

Under the Civil Rights Act, an employer must make reasonable accommodations for an employee's religious practices, unless the employer can show that doing so would cause ''undue hardship on the conduct of its business.''

In a letter commenting on the proposed rule, Mr. Ishimaru and Ms. Griffin, from the employment commission, said that 40 years of court decisions had carefully balanced ''employees' rights to religious freedom and employers' business needs.''

The proposed rule, they said, ''would throw this entire body of law into question.''

Mr. Leavitt, a leading proponent of the rule, said it would increase compliance with laws adopted since 1973 to protect health care workers.

As an example of the policies to which they object, Bush administration officials cited a Connecticut law that generally requires hospitals to provide rape victims with timely access to and information about emergency contraception.

Gov. M. Jodi Rell of Connecticut, a Republican, said the state law represented ''an earnest compromise'' between the rights of rape victims and the interests of health care practitioners who had moral or religious scruples against emergency contraception.

The state attorney general, Richard Blumenthal, a Democrat, said the proposed regulation ''would blow apart solutions and compromises that have been reached by people of good will in Connecticut and elsewhere.''